Nebraska Approves Keystone XL Pipeline, But Fight Continues

Opponents of the Keystone XL pipeline demonstrate during rush hour in Omaha, Nebraska, on November 1, 2017.

On Monday, the Nebraska Public Service Commission voted to approve construction of the Keystone XL Pipeline, thereby clearing the project’s last regulatory hurdle. The decision comes just days after an existing segment of the Keystone pipeline leaked 210,000 gallons of oil in Marshall County, South Dakota. Although former President Obama shelved Keystone XL following a massive public outcry in November 2015, President Trump has since revived it, throwing a critical environmental victory into serious doubt.

But even as state regulators green-light the pipeline, Keystone’s future remains far from certain. In approving the project, the commission altered its route to avoid Nebraska’s vulnerable Sandhills region. The decision could set TransCanada’s plans back months, or even years, as it must now secure easements with a new set of Nebraska landowners.

The company also faces a tough legal challenge in federal court. Within days of the pipeline’s federal approval in March, a half dozen environmental groups, including the Sierra Club and the Natural Resources Defense Council, sued the administration in federal court.

The groups allege that Trump’s decision violates federal law by relying on outdated environmental data and by arbitrarily rejecting a years-long decision-making process launched by the Obama administration. The lawsuits are likely to delay construction until the second half of 2019 at the earliest.

“These guys are playing fast and loose with our regulatory process,” Jamie Henn, a co-founder of the climate-action group 350.org, told me last month when I spoke to him about Keystone’s approval process. “It won’t hold up in court.”

The plaintiffs’ case appears strong. While Trump approved Keystone’s federal permit in March and handed off the final decision to regulators in Nebraska, the president’s order suffers from the administration’s typical regulatory sloppiness.

The approval relies on an environmental review that the Obama administration conducted nearly four years ago. At the time, regulators assumed that the pipeline would have little impact on carbon emissions, since high oil prices would lead to the speedy development of sources like Alberta’s tar sands. As long as oil prices stay above $75 a barrel, the State Department estimated, Keystone’s climate impacts would be minimal.

But prices haven’t been above $75 per barrel since 2014, meaning the climate impacts of Keystone’s 830,000 barrels of tar sands oil will likely be much greater. Prices have been so low that market analysts have begun to doubt whether TransCanada could even break even on the project, or whether tar sands production could actually still yield a profit. Even after winning federal approval this year, TransCanada executives told investors that dwindling demand puts put the project’s funding in serious jeopardy.

Trump’s reliance on the 2014 review also fails to consider significant new research on the environmental and health risks posed by projects like Keystone. Last year, the National Academy of Sciences concluded that the type of tar sands oil that Keystone pumps could make pipeline spills more dangerous, a reversal of an earlier finding. And a State Department report published earlier this year found that pipelines operating at lower capacity could make leaks more likely—meaning TransCanada’s difficulties finding buyers could make the project even more dangerous.

Those risks were on full display last week, as TransCanada workers struggled to contain a 5,000-barrel tar sands leak in nearby South Dakota. Although the company says it has isolated the spill, environmental advocates argue that the incident illustrates that profound risks remain as the United States continues to expand its pipeline network. In 2010, a similar leak outside Marshall, Michigan, left drinking water sources contaminated for more than five years. Nationwide, pipeline accidents have increased by 60 percent since 2009.

For TransCanada, the road to Monday’s approval has been long and arduous. The company first proposed the pipeline nearly a decade ago, but massive public opposition has repeatedly derailed the project’s construction. An unprecedented five million Americans submitted comments during four public comment periods from 2012 to 2014, with the last coming in 2017. The vast majority of people who responded opposed construction.

Groups like 350.org organized grassroots opponents, who have turned out at more than 750 protests across the country since 2011. One such protest, a 2011 sit-in at the White House, represented one of the largest acts of civil disobedience in the United States in decades. “Keystone became a symbol of the types of choices that we were going to make,” said Henn.

By November 2015, the opposition to the project had become so fierce both inside and outside Washington that TransCanada abruptly suspended its federal permit application, fueling speculation that the company intended to wait for a Republican administration to review the project. Days later, the Obama administration officially rejected the permit. Obama declared, “America is now a global leader when it comes to taking serious action to fight climate change,” adding, “We’re going to have to keep some fossil fuels in the ground.”

Since Trump’s approval threw the final decision back to Nebraska, local opposition has become far more heated. In the weeks leading up to Monday’s vote, Bold Nebraska, a coalition of landowners, tribal leaders, and climate activists, ramped up canvassing efforts throughout the state. They targeted districts represented by the state public service commission’s five representatives, and also focused on TransCanada’s controversial use of eminent domain to secure land along the pipeline route. Unlike the State Department, the Nebraska PSC was barred by state law from considering a project’s environmental impacts.

But now as the state’s decision threatens to undo one of the most important environmental victories in recent memory, advocates vow to press on. “By pushing Keystone XL onto a new route, the commission all but guaranteed more delays and hurdles for TransCanada to work through,” said 350.org Executive Director May Boeve in a statement Monday. “This fight is far from over.”